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2009 DIGILAW 1004 (ALL)

YOGENDRA SINGH JHA ALIAS YOGI v. STATE OF U P

2009-04-01

VINOD PRASAD

body2009
VINOD PRASAD, J. Half a dozen applicants, namely, Yogendra Singh Jha @ Yogi, Govinda Jha, Deepak Jha, Raj Kumar Tha Raiesh Thakur and Bhushan Jha have challenged their summoning order dated 26. 11. 2005 (Annexure No. 8 to the affidavit) passed by Judicial Magistrate, Gautam Budha Nagar in Complaint Case No. 5738 of 2005 (Faikan Chaudhary v. Yogendra Singh Jha and others), under sections 406, 147, 324, 504 and 506 IPC, Police Station Sector 20, NOIDA, District Gautam Budha Nagar. 2. The pleadings made in this appli cation indicate that respondent No. 2 Fai kan Chaudhari instituted prosecution of Complaint Case No. 5738 of 2. 005, Faikan Chaudhry v. Yogendra Singh Jha and others in the Court of Chief Judicial Magistrate, Gautam Budha Nagar on 5. 4. 2005 with the allegations that he had given Rs. 5000/- to Yogendra Singh @ Yogi, the first applicant, for erecting a thatch. After some time when he demanded his money back then Yogendra Singh Jha @ Yogi started making ex cuses. On 23. 3. 2005 at 10. 30 p. m. respon dent complainant Faikan Chaudhry went to the house of Yogendra Singh Jha @ Yogi, applicant No. 1, and repeated his demand to repay Rs. 5000/- on which Govinda Jha, Deepak Jha, Raj Kumar Jha, Rajesh Thakur and Bhushan Jha, at the instigation of Yogi, assault respondent- complainant with sharp edged weapons already carried by them due to which respondent-complainant sustained lacerated wound on the head. Assault was witnessed by Kamla Kant Mishra, Ravindra and many other co-villagers, who intervened and saved the life of the complainant-respondent. When the victim was being transported to the hospital he was also abused filthy by the accused persons, who also threatened him to be murdered. 3. Endeavour by respondent-complainant to get a FIR registered did not yield desirable result, as the FIR only for non-cognizable offences under sections 323 and 504 IFC was registered by the police under the influence of accused persons. Wife of respondent-complainant had also approached the police officers in vain to get the FIR of serious offences registered. Since complainant-respondent was assaulted and threatened and the money advanced by him was not repaid that he invoked the power of the Magistrate and lodged a complaint on 5. 4. 2005 (Annexure No. 5 ). 4. Wife of respondent-complainant had also approached the police officers in vain to get the FIR of serious offences registered. Since complainant-respondent was assaulted and threatened and the money advanced by him was not repaid that he invoked the power of the Magistrate and lodged a complaint on 5. 4. 2005 (Annexure No. 5 ). 4. The medical examination report of Faikan Chaudhry, Annexure No. 6, indi cates that he had sustained as many as seven injuries, which were caused by hard blunt objects. 5. The complaint of the complainant was registered as Criminal Case No. 5738 of 2005. In support of his case complainant examined himself under section 200 Cr. P. C. and Ravindra son of Sone Lal and Kamal Kant Mishra, as his witnesses under section 202 Cr. P. C. The statements of the witnesses have been appended cumulatively as An nexure No. 7 to this application. Vide An nexure No. 8, an order dated 26. 11. 2005, Judicial Magistrate, Gautam Budh Nagar summoned the accused-applicants for offences under sections 406, 147, 324, 504 and 506 IPC fixing 24. 12. 2005 for their appear ances. Hence, this application by the appli cants to quash the summoning order An nexure No. 8. 6. When this application came up for admission learned Counsel for the appli cants argued that a cross version instituted by the applicants against respondent No. 2 and others accused persons has been stayed by this Court in Criminal Miscella neous Application No. 36005 of 2008 and hence, this application was directed to come up along with the aforesaid Criminal Miscellaneous Application. The matter was listed before the Court on two or three dates but the Counsel in connected Crimi nal Miscellaneous Application No. 36005 of 2008 did not appear inspite of intimation being given by learned Counsel for the applicant. 67. I have gone through the record of both the above Criminal Miscellaneous Applications and have heard Sri S. A. Imam, learned Counsel for the applicants in the present Criminal Miscellaneous Application No. 4400 of 2009. 8. A perusal of the record of con nected Criminal Miscellaneous Application No. 36005 of 2008 indicates that the said Criminal Miscellaneous Application relates with the prayer of quashing charge-sheet dated 9. 1. 2008 relating to Crime No. 792 of 2007, under sections 395, 452, 504 and 323 IPC vide Case No. 1008 of 2007 pending before CJ. 8. A perusal of the record of con nected Criminal Miscellaneous Application No. 36005 of 2008 indicates that the said Criminal Miscellaneous Application relates with the prayer of quashing charge-sheet dated 9. 1. 2008 relating to Crime No. 792 of 2007, under sections 395, 452, 504 and 323 IPC vide Case No. 1008 of 2007 pending before CJ. M. , Gautam Budh Nagar. According to the pleadings made in the aforesaid Criminal Miscellaneous Application (36005 of 2008) an FIR was lodged on 17. 7. 2007 against the applicants therein namely, Fai kan Chaudhari, Ravindra Kumar, Raj Kumar and Sachindra Jha by Jogindra Jha, which was registered as Crime No. 792 of 2007, under sections 395, 452, 504 and 323 IPC, P. S. Sector-20 NOIDA, district Gautam Budh Nagar vide Annexure No. 3. The ac cused-applicants Faikan Chaudhari and three others filed a Criminal Miscellaneous Writ Petition No. 19281 of 2007 challenging the said FIR. By an order dated 22. 11. 2007 (Annexure No. 4) this Court, in the afore said writ petition, called for a counter affi davit from informant and AGA and stayed the arrest of the accused-petitioners with out staying the investigation, which ulti mately culminated in filing of a charge-sheet against the four accused persons on 9. 1. 2008 vide Annexure No. 5 to the said Criminal Miscellaneous Application. Judi cial Magistrate, Gautam Budh Nagar be fore whom the said charge-sheet was laid by the police took cognizance of the of fences and summoned the accused-applicants on 7. 2. 2008. Hence, the four ac cused applicants Faikan Chaudhari, Rav indra Kumar, Raj Kumar and Sachindra Jha approached this Court through the above Criminal Miscellaneous Application No. 36005 of 2008 wherein this Court on 7. 1. 2009 issued notices for filing counter affidavits and stayed further proceedings of the trial against accused applicants on the basis of the aforesaid charge-sheet be ing Criminal Case No. 1008 of 2007 for of fences under sections 395, 452, 504 and 323 IPC. The record further reveals that in the FIR lodged against four applicants, it was alleged by Jogindra Jha that his neighbour Chandra Bhushan Jha had taken a loan of Rs. 5000/- from Faikan Chaudhari at an interest of 15% regarding which he had paid interest only. On 22. 3. 2005 at 9. The record further reveals that in the FIR lodged against four applicants, it was alleged by Jogindra Jha that his neighbour Chandra Bhushan Jha had taken a loan of Rs. 5000/- from Faikan Chaudhari at an interest of 15% regarding which he had paid interest only. On 22. 3. 2005 at 9. 00 p. m. Faikan Chaudhari came to the hutment of Chandra Bhushan and demanded back his advance money and started abusing him under the influence-of liquor. On inability being shown by Chandra Bhushan, Faikan Chaudhari left the spot making threatening utterances. On 23. 3. 2005 at 10. 00 p. m. Faikan Chaudhari along with Ravindra Ku mar, Raj Kumar and Sachindra Jha and others armed with blunt objects came to the hutment of Chandra Bhushan hurling filth ily abuses, entered into the hut and bela boured Chandra Bhushan. Jogindra Jha and his brother-in-law Rahul Jha reached at the spot to save the assaulted persons but they were also belaboured, resultantly both of them sustained injuries. Chandra Bhushan and his family members shelter themselves in another house. Accused persons looted ornaments, utensils and Rs. 27000/- cash from the house of Chandra Bhushan Jha, which was saved for the marriage of the brother-in-law, to be solemnized on 19th May. Accused persons locked the hutment of Chandra Bhushan Jha which was got unlocked by the police of Sector-20 NOIDA. However, police arrested the informant under section 151 Cr. P. C. When the informant returned back after being released on bail then he tran scribed the FIR on 17. 7. 2007 and lodged it at police station Sector-20 NOIDA at 4. 30 p. m. which was registered as Crime No. 8970479207, under sections 395, 452, 504 and 323 IPC. The Investigating Officer commenced the investigation and, as men tioned above, charge-sheeted the accused persons with the aforesaid offences on 9. 1. 2008 vide charge-sheet number 592 of 2007. Hence, the accused persons had filed above Criminal Miscellaneous Application No. 36005 of 2008 before this Court for quashing the said charge-sheet. 9. The Investigating Officer commenced the investigation and, as men tioned above, charge-sheeted the accused persons with the aforesaid offences on 9. 1. 2008 vide charge-sheet number 592 of 2007. Hence, the accused persons had filed above Criminal Miscellaneous Application No. 36005 of 2008 before this Court for quashing the said charge-sheet. 9. From the discussions made above, it is perceptibly clear that both the Criminal Miscellaneous Applications being Criminal Miscellaneous Application No. 4400 of 2009, Yogendra Singh Jha @ Yogi & others v. State of U. P. and another and Criminal Mis cellaneous Application No. 36005 of 2008, Faikan Chaudhari and others v. State of U. P. and another relates with the same incident, which occurred on 23. 3. 2005 at 10. 00 p. m. Both the sides had sustained injuries in the aforesaid incident. From the side of Yogen dra Singh Jha @ Yogi, he and his brother-in-law Rahul Jha had sustained injuries. From the rival side Faikan Chaudhari he had sustained injuries. Thus, it is apparent that the happening of the incident is admit ted to both the sides. In such a view, it can not be said that the prosecution launched by either side is malafidy or vexatious. Both the sides have their own version of the in cident. Which version is correct can be seen and judged only by the Trial Court after giving opportunity to lead evidences to both the sides. Since, happening of the in cident is admitted to both the rival contest ing sides, the prosecution launched by ei ther side cannot be quashed nor the prose cution can be nipped into bud. A legiti mately launched prosecution cannot be thwarted specially when disputed ques tions of facts exists to be adjudicated. 10. In such a view, I find no reason to quash the prosecution of either of the Criminal Miscellaneous Applications. 11. A legiti mately launched prosecution cannot be thwarted specially when disputed ques tions of facts exists to be adjudicated. 10. In such a view, I find no reason to quash the prosecution of either of the Criminal Miscellaneous Applications. 11. In view of the aforesaid, both Criminal Miscellaneous Application No. 4400 of 2009, Yogendra Singh Jha Yogi & others v. State of U. P. and another relating to Complaint Case No. 5738 of 2005, under sections 406, 147, 324, 504 and 506 IPC, P. S. Sector-20, NOIDA, District Gautam Budha Nagar and Criminal Miscellaneous Applica tion No. 36005 of 2008/faikan Chaudhari and others v. State of U. P. and another relating to Crime No. 792 of 2007, under sections 395, 452, 504 and 323 IPC, P. S. Sector 20- NOIDA, District Gautam Budh Nagar, pending in the Court of C. J. M. Gautam Budh Nagar as Case No. 1008 of 2007 are hereby dismissed. In terim order granted in Criminal Miscellane ous Application No. 36005 of 2008 dated 7. 1. 2009 stands vacated. Application Rejected. .